(Part 2 of 3)
Last week, I brought up the data somewhat dubiously presented in the Explanation Note of the SOGIE (Sexual Orientation and Gender Identity & Expression) Bill, to justify its passage into law. This second article highlights the acts sought to be illegalized, raising concerns and questions thereto.
We know that in a constitutional republic, Congress may not pass a law that would violate the 1987 Philippine Constitution. We find therein such rights as freedom of religion, right to free speech, and academic freedom.
Additionally, there are other rights not contained in the Constitution but have been solidified through judicial fiat by the Supreme Court, thus, having the force of law, such as the right of owners of business to run their business as they deem fit under the doctrine of management prerogative.
The SOGIE Bill is primarily presented by advocates as a means of protecting a certain class of people who are vulnerable to discrimination. If it were only that, and it is done well, I think most people would come on board. Unfortunately, the bill does not stop there.
It should also be noted that if passed into law, the SOGIE Bill will punish violations thereof with a fine ranging from P100,000 to P250,000 or imprisonment for one year to 12 years.
Most of the prohibited practices in the bill actually have their merits. However, there are some grave concerns to be had.
SOGIE Bill punishes persons for holding traditional views of gender.
Sec. 5(a) of the bill makes it a crime to “promote and encourage stigma on the basis of SOGIE” where stigma is defined in Sec. 3(f) as the “dynamic devaluation and dehumanization of an individual”.
This is, of course, problematically broad and vague. How is stigma objectively proven? Or was this intended all along to be subjective and personal to the individual? And if it is the latter, is the mere allegation of feeling stigmatized sufficient for probable cause?
Would “stigma” include the religious faith of millions that upholds traditional genders?
Under the bill as worded, if a pastor or priest talks about traditional genders based on biblical precepts, and a hearer complains to have been devalued and dehumanized thereby, is the crime consummated?
Without any clear accommodation or exception for freedom of religion, the bill, without exaggeration, would outlaw mere dissent thereto, since somebody can always claim to have been stigmatized when you disagree with their SOGIE.
Indeed, even the non-religious person who nonetheless holds a traditional view of gender and sex would likewise be liable for fine or imprisonment.
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SOGIE Bill violates other rights and freedoms afforded by law.
Sec. 5(b) of the bill also makes it a crime to include SOGIE as a criterion for employers in hiring, dismissing, and other human resource movement.
Again, there is nothing in the bill that recognizes religion-based or faith-based businesses and corporations.
Hence, if, for instance, a Catholic or some other religious and private hospital, enterprise, or service company refuses to hire somebody, because the applicant is of a SOGIE that goes against the business owners’ religious beliefs, those owners will be prosecuted to jail.
The SOGIE Bill will moreover punish all-girl or all-boy schools that refuse to admit or retain a student of the opposite sex, or transgender.
Under Sec. 5(c) of the bill, schools would be liable for a crime when it rejects a biological boy claiming to be a girl to enter an exclusive girls’ school, and vice versa.
And not to forget Gretchen Diaz, the SOGIE Bill penalizes establishments that bar transgenders from using the bathroom of the opposite sex.
Sec. 5(h) makes it a crime to deny access to facilities and utilities open to the general public based on SOGIE, which, of course, includes comfort rooms in malls, even establishments that might be operated along religious principles and values.
If passed by Congress as it is currently worded, the bill will likely not survive judicial and constitutional review.
Its prohibited acts are phrased in such sweeping terms so as to be hostile to other rights. It swings way too strongly towards one side to the detriment of the other.
This doesn’t have to be the case, and I believe a workable balance can be achieved. More on that in the next article.
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Author’s email: [email protected]
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